European Justice definitively clears the way to cut off funds from Hungary and Poland

• EU Poland maintains the order to Brussels: "We will never be a province of the European Union"

The

of the

has completely cleared the way this Wednesday for

to cut the structural or cohesion funds of

and

as punishment for repeated challenges to the rule of law, and in particular for pressure on the judicial system.

More than a year ago, after endless negotiations and after overcoming an indirect veto from

and

, the

established a

, an instrument that for the first time gives sufficient powers to the

to cut off funds from a country if it is shown that the rule of law is not being respected and that common resources are being misused.

Part of the process, however, contemplated an irregular 'gentleman's agreement' by which President Ursula von der Leyen promised not to activate the mechanism until the CJEU ruled on its legality, questioned by Viktor Orban and Tadeus Morawiecki .

Today, after much waiting, the court has made it clear that it can go ahead.

The magistrates have dismissed the appeals filed this morning, considering that the mechanism has been adopted "on an adequate legal basis, is in accordance with the procedure provided for in

and respects, in particular, the limits of the powers attributed to the Union and the principle of legal certainty".

Brussels

(understood in its broadest sense, including the Parliament and the Commission but also a good part of the Council) is clear about it and there should be no reason to start up in a matter of days or weeks.

Arguments are not lacking.

The clashes in recent years have been constant, due to the pressure on the judges, due to laws against the rights of

, due to the pressure to close private universities or even after various sentences and fines from the

itself for things such as not closing a mine.

There are several cases open and, furthermore, the

has not even given the green light yet to the

of both countries (as there are deficiencies in the section on legal certainty and independent control of the courts), so they still do not have access to the money from the joint debt issues to face the costs of the pandemic.

Hungary

and

have tightened the rope to the maximum, knowing that the Treaties provide few effective and real instruments for the community institutions to react to an open challenge.

There is the so-called 'nuclear button',

, which ultimately allows even a government to be deprived of a vote in the Council.

Both countries have two files open, one at the request of the Commission and the other of Parliament, but reaching the end requires unanimity, and both protect each other.

There was not much room, until this instrument was created, in parallel with the approval of the Recovery Fund of 800,000 million euros and together with

for the period 2021-2027.

The

governments denounced before the

that the mechanism was illegal, but the high court estimated this Wednesday, following the recommendations of the attorney general, that it was not.

"A horizontal conditionality mechanism such as the one created by the Regulation, which makes access to financing from the Union budget subject to respect, by a Member State, of the principles of the rule of law, may be included in the competence that the Treaties confer on the Union to establish "financial rules" relating to the execution of the Union budget", says the sentence.

The elections in Hungary unleash doubts

What has happened since 2020 has affected the image of the Commission.

Legally and legislatively, there was no reason not to proceed, since the mechanism had been approved and there had been enough complaints.

Experts consider that a pact between leaders was not a sufficient reason for the delay.

The European Parliament decided a few months ago to go to court, outraged by

's passivity , which in order to maintain the balance of power (and fearing that

and

would make the day-to-day life of the Union impossible with vetoes, blockades or boycotts) has set a dangerous precedent.

Her case, however, was not very strong, as the Commission has discretion on its side.

Now, however, the doubts arrive, as Hungary holds elections in April.

The opposition has been calling for intervention for many months, but

's team hesitates, estimating that the Rule of Law Mechanism would give Orban even more electoral ammunition, turning the polls into a kind of referendum on the Union.

At the beginning of December, the attorney general, the Spaniard

, considered that the purpose of the Regulation is to create a specific mechanism to ensure the correct execution of the Union budget, especially when a Member State incurs in violations of common principles "that jeopardize the sound management of the Union's funds or its financial interests".

In this context, the attorney general stressed that the Regulation "does not seek to protect the rule of law through a sanctioning mechanism similar to that of

of the Treaties, but rather establishes an instrument of financial conditionality to preserve this value of the Union", since his opinion "the power of appreciation of the institutions of the Union supports this legislative option, which cannot be described as manifestly erroneous, since respect for the principles of the rule of law can be of fundamental importance for the proper functioning of public finances and for the correct execution of the Union budget".

In their decision today, the magistrates recall that "the respect by the Member States of the common values ​​on which the Union is founded, which have been identified and are shared by those States and which define the very identity of the Union as a legal system common to such States, 4 including the rule of law and solidarity, justifies mutual trust".

And that therefore, and given that respect for such values ​​is a requirement to enjoy all the rights derived from the application of the Treaties, "the Union must be in a position, within the limits of its powers, to defend the values indicated".

And that it cannot be accepted that respect for values ​​is something punctual, a prerequisite for adherence that one can later exempt oneself from.

direct link

A key element in the legal dispute has to do with what elements can trigger the activation of the mechanism.

The approval of the same, at the end of 2020, does not give the Commission carte blanche, but in order to try to cut off the flow of European funds, it must be demonstrated that what is at stake is not only the

, but also a danger for the community coffers, common.

In the text that will be published today, the

emphasizes that the Regulation requires, for the adoption of protection measures, "that a real link be proven between a violation of a principle of the rule of law and an affectation or threat seriously affect the sound financial management of the Union or its financial interests, and that such violation must refer to a situation or an action attributable to an authority of a State and pertinent to the sound financial management of the Union budget".

And it is enough because the concept of "threat" is detailed in the Union's financial regulations and highlights that "the protection measures that can be adopted must be strictly proportionate to the impact on the Union budget of the observed violation. Specifically, According to the

, these measures may have as their object actions or programs other than those affected by such infringement only to the extent strictly necessary to achieve the objective of protecting said budget as a whole".

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